KINGMAN & CO. v. PIXLEY

KINGMAN & CO. v. PIXLEY
1898 OK 65
54 P. 494
7 Okla. 351
Decided: 07/30/1898
Supreme Court of Oklahoma

KINGMAN & CO.
v.
DANIEL PIXLEY

SYLLABUS

¶0 1. DEMURRER TO PETITION.--Amendment--Error Waived. When a demurrer is sustained to a petition, and plaintiff, after obtaining leave of court, files an amended petition, and issues are joined thereon and a trial had, the plaintiff, by filing his amended pleading, waves any error committed by the trial court in sustaining such demurrer.
2. CONTINUANCE--Motion for--Must be Part of Record on Appeal. Motions, affidavits for continuance, and evidence introduced upon the trial of a cause, cannot be considered on appeal by the supreme court, unless made a part of the record by a bill of exceptions or by a case-made.

Error from the Probate Court of Pawnee County; before Edward L. Lemert, Probate Judge.

Action by Kingman & Co. against Daniel Pixley. Judgment for defendant, and plaintiff brings error. Affirmed.

James P. Neal, for plaintiff in error.
Eagleton & Morphis, for defendant in error.

BURNWELL, J.:

¶1 The plaintiffs in error, Kingman & Co., on the day of November, 1894, commenced an action against the defendant, Daniel Pixley, in the probate court of Pawnee county, on a foreign judgment for $ 769.15. Issues were joined, and a trial had, which resulted in a judgment for the defendant. Plaintiffs appeal by transcript to this court, praying a reversal of the judgment below, and assign error as follows:

¶2 First, that the court erred in sustaining defendant's demurrer to plaintiffs' original petition. The record discloses that when defendant's demurrer to plaintiffs' original petition was sustained the plaintiffs obtained leave to amend, and filed an amended petition, which embraced all of the matters and things alleged in the original petition. Issues were joined by the defendant, and a trial had; and, even if the trial court committed error in sustaining defendant's demurrer to plaintiffs' original pleading, the plaintiffs waived such error when they filed their amended petition. (Young v. Martin, 8 Wall. 354, 19 L. Ed. 418; Rosa v. Railway Co., 18 Kan. 124.)

¶3 Appellants allege, second, that the court erred in overruling the motion of plaintiffs in error to require defendant to make his answer more definite and certain; third, in overruling the motion of the plaintiffs in error to require defendant to elect which of his several inconsistent defenses he relied upon; and, fourth, in overruling the motion and application of plaintiffs in error for a continuance.

¶4 This record comes to us on a transcript. Therefore the last three citations of error cannot be considered. The errors, if any were committed, should have been saved by a bill of exceptions, or presented by a case-made. Neither of the motions nor the application for a continuance are a part of the record. They constitute no part of the judgment roll, as held by this court in the case of Fisher v. U. S., 1 Okla. 252, 31 P. 195, and cannot be considered simply because the clerk has copied them in the transcript.

¶5 The fifth and sixth citations of error are that the court erred in sustaining the demurrer of the defendant to the evidence of the plaintiffs in error, and in rendering judgment for the defendant in error. Plaintiffs in error have not given us a record of the trial of this cause in such a condition that we can legally decide these two points. They have attempted to bring up the evidence in a transcript certified by the probate judge, acting ex officio as clerk of that court. This cannot be done. The evidence on a trial can only be reviewed by this court when incorporated in a bill of exceptions or a case-made. (See Mining Co. v. Hallan, [Colo. Sup.] 44 P. 509; Oltmanns v. Findlay, [Neb.] 66 N.W. 425; Harris v. Transfer Co. [Colo. App.] 48 P. 900; McCumber v. Haynes, [Colo. App.] 48 P. 903.)

¶6 For the reasons herein stated the judgment of the trial court is affirmed at costs of appellants. The clerk will issue a mandate to the lower court in conformity herewith.

¶7 All of the Justices concurring.